Net neutrality bill could face legal “throttling”

House lawmakers overwhelming approved SHB 2282 imposing net neutrality on internet service providers (ISP) in Washington state. However, the Federal Communication Commission’s (FCC) December order argues that it has jurisdiction and will preempt any state law. Photo: Phys.org

The Washington House overwhelmingly approved bipartisan legislation February 9 imposing net neutrality policy that proponents say will protect Internet consumers and small business owners, but if enacted could get derailed due to federal preemption.

SHB 2282’s prime sponsor Rep. Brian Hansen (D-23) told colleagues on the House floor that “net neutrality has worked very well to protect a free and open internet. Net neutrality’s important to everyone: our constituents, small business owners, teachers, entrepreneurs; all of us.”

The 93-5 floor vote was perhaps expected judging by the bill’s 51 Democrats and Republican cosponsors. Among them was Rep. Richard DeBolt (R-20), who said on the House floor that the bill would prevent “throttling” or paid-prioritization. “You are on a provider and that provider has a joint agreement with Netflix. You decide you want to watch Hulu” but you have a slower speed. “This bill won’t let that happen now and it gives you the opportunity to have the same speed on all your issues.”

He added, “Our number one thing is to roll broadband out to rural Washington. To get Washington (internet) speeds up.”

SHB 2282 requires internet service providers (ISP) to disclose their network management, performance and other data to consumers. In addition to “throttling,” ISPs are prohibited from blocking legal content, service or devices. Violators are subject to enforcement solely by the state attorney general under the Consumer Protection Act. However, industry members have previously told lawmakers that they have made legally-enforceable pledges not to engage in this behavior, and the Federal Communications Commission’s (FCC) December order found “scant evidence” that throttling has ever occurred.

However, it could all be a moot point if the FCC decides to enforce its December order rescinding net neutrality, which declares “We…preempt any state or local measures that would effectively impose rules or requirements that we have repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service that we address in this order.

“We conclude that regulation of broadband Internet access service should be governed principally by a uniform set of federal regulations, rather than by a patchwork of separate state and local requirements,” the order states. “Allowing state and local governments to adopt their own separate requirements, which could impose far greater burdens than the federal regulatory regime, could significantly disrupt the balance we strike here. Federal courts have uniformly held that an affirmative federal policy of deregulation is entitled to the same preemptive effect as a federal policy of regulation.”

However, Hansen argued to colleagues prior to the February 9 vote that the FCC’s argument is contradictory. “Here, the FCC has said at the same time this statute lacks any grant of authority for it to regulate conduct on the internet, but at the same time as if by some dark magic, grants them broad, sweeping authority to preempt…state consumer protection laws. I’m not sure how that can be true.”

“Obviously we do not know what will happen in court,” he added.

Constitutional issues aside, having dozens of different state-level policies for ISPs could cause complications, warns CTIA, a trade association that includes AT&T, Sprint and T-Mobile. In a statement to Lens, Senior Vice President, External and State Affairs Jamie Hastings wrote that: “America’s wireless industry remains committed to the open internet and to delivering consumers a world-leading mobile experience. The issue needs to be addressed by Congress and not a patchwork of state-by-state legislation, because the internet doesn’t stop at state borders.”

If approved by the Senate and signed by Governor Jay Inslee, SHB 2282 would take effect three months after the end of the legislative session. It has not yet been referred to a Senate committee.